Aguila Blanca
Staff
I thought both the local PD and the local prosecutor had officially stood down from the case.MLeake said:
"Stand Your Ground" op ed in the NY Times 3/21
- Thread starter Uncle Billy
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Spats McGee
Administrator
fiddletown, I really hope you have that saved as a document somewhere. It's long, but it's a very good explanation. I get the impression you've posted that before.fiddletown said:
I haven't seen these sources posted that seem to corroborate self-defense interspersed with obvious media sensationalism:
miamiherald
and another:
my fox orlando
miamiherald
and another:
my fox orlando
I think where Zimmerman is going to have problems is here:
If he did, then he would never have gotten out of his vehicle or he simply would have fled, especially considering that he knew police were on the way.
I think the prosecution will hit that pretty hard.
Probably his defense lawyer will claim that he didn't fear for his life until he was attacked by Trayvon Martin.
Personally I see a police department that doesn't seem to understand the law, I don't see how "stand your ground" Florida law covers it, and I think Zimmerman is going to have a hard sell to the Jury that this was justifiable homocide.
If he did, then he would never have gotten out of his vehicle or he simply would have fled, especially considering that he knew police were on the way.
I think the prosecution will hit that pretty hard.
Probably his defense lawyer will claim that he didn't fear for his life until he was attacked by Trayvon Martin.
Personally I see a police department that doesn't seem to understand the law, I don't see how "stand your ground" Florida law covers it, and I think Zimmerman is going to have a hard sell to the Jury that this was justifiable homocide.
THIS.
You must know and understand your state's (or cities, etc) laws.
And NOT just the statute law, but at least some of the case law.
Virginia has NO statute law covering lethal force (even for the police).
It is ALL CASE (common) law (and we have a whole lot of it), and it is VERY good).
The various state 'gun owner's guides' (Bloom press) are an excellent place to start.
I have multiple states that allow reciprocity for my permit.
There are just enough differences you need to be aware of them in each state (and maybe city) that you plan on carrying in.
Carry_24/7
New member
@TomServo.....you chopped off the beginning of my statement. So by what you did post of my statement, you are 100% correct; there may be more to the story.
@Mleake...I did hear the Feds were stepping in, but I did not hear that the state was doing anything.....thats all good news you posted.
@Mleake...I did hear the Feds were stepping in, but I did not hear that the state was doing anything.....thats all good news you posted.
CaptainObvious
Moderator
There is no way to intelligently discuss the Zimmerman/Martin case without fully knowing all the facts which means we have to wait until the investigation is complete and it is put through trial. Right now, on a daily basis, there is a combination of false statements, opinions presented as facts, transparent distortions, a complete absence of relevant details and most every news article is presented from the family's point of view with outdated pictures when Martin was much younger.
I have not formed an opinion on that particular case or Stand Your Ground because I do not know all the facts. I have stopped reading news articles on the case because I know they will not have all the facts. So we have to wait until the legal process has completed and, unfortunately, that might be at least another month or more. Our system is slow, but it works and all of the facts will be revealed in good time. We should most certainly not try a man by information we find on the internet and we should not strike down laws because of the sudden emotion an event presents at the time. We should be slow and methodical with our approach and make every move in the spirit of the Constitution. So we have to wait and I will decide upon this issue when the legal process has completed. Every person is entitled to due process and has rights in these matters which should be upheld no matter the situation.
I have not formed an opinion on that particular case or Stand Your Ground because I do not know all the facts. I have stopped reading news articles on the case because I know they will not have all the facts. So we have to wait until the legal process has completed and, unfortunately, that might be at least another month or more. Our system is slow, but it works and all of the facts will be revealed in good time. We should most certainly not try a man by information we find on the internet and we should not strike down laws because of the sudden emotion an event presents at the time. We should be slow and methodical with our approach and make every move in the spirit of the Constitution. So we have to wait and I will decide upon this issue when the legal process has completed. Every person is entitled to due process and has rights in these matters which should be upheld no matter the situation.
The subject of this thread is supposed to be the article:
Focus Must Be Narrower by Adam Winkler published in the New York Times.
Focus on what he says, concludes and how he does it.
http://www.nytimes.com/roomfordebate...round-law-says
But remember:
Focus Must Be Narrower by Adam Winkler published in the New York Times.
Focus on what he says, concludes and how he does it.
http://www.nytimes.com/roomfordebate...round-law-says
But remember:
I think Uncle Billy and I are the only ones so far who have addressed the article.
Granted that what brought about Professor Winkler's article was the Martin/Zimmerman confrontation. This is however, not what this thread is supposed to be about, as Mello2u has stated above.
I am going to start banning folks that bring up the Florida shooting in context with this thread. Why? We know next to nothing of the actual facts of that case. Saying anything at this point, about that case, is mere speculation or emotions run amok.
Be warned!
I am going to start banning folks that bring up the Florida shooting in context with this thread. Why? We know next to nothing of the actual facts of that case. Saying anything at this point, about that case, is mere speculation or emotions run amok.
Be warned!
TheKlawMan
Moderator
I am not going to comment on the Martin shooting, since I know little or nothing about it, but I was aware of the Florida statute re The Castle Doctrine prior to the Martin shooting and had commented on the perceived problems with the statute. No; not on TFL. The sum and substance of my review was that the Florida statute gives rise to the presumption that a shooting was justifiable merely from the fact that a dwelling or a vehicle was unlawfully entered. For instance, if a drunk who had mistook your home for his down the street, entered it without permission (unlawfully) and passed out on the couch, a homeowner that chose to blow the sleeping drunk to kingdom come would be entitled to a presumption that he "held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another" and would be immune from prosecution.
What really griped me about Florida's statute was its failure to provide whether the presumption was rebuttable or irrebuttable. My understanding is that the statute was enacted to prevent over zealous prosecutors from forcing a shooter to prove that they held a reasonable fear of death or great bodily injury. To place the burden on the accused arguably flew in the face of system where one is presumed innocent until proven guilty. I tend to agree with that train of thought and believe that a shooter should be presumed to have feared imminent peril, as long as the presumption is rebuttable.
Were it rebuttable, then once any evidence is offered tending to prove that a fear of imminent death or injury was lacking, no presumption exists.
As for the stand your ground part of the statute, it really has nothing to do with the existence or extent of any presumption. If force is used in any other place than a dwelling, residence, or vehicle, it seems abundantly clear that the accused may not rely on the presumption that he/she held the reasonable belief. Once they are shown to or admit to doing the shooting, they have the burden of establishing justification.
Just my 2 cents.
What really griped me about Florida's statute was its failure to provide whether the presumption was rebuttable or irrebuttable. My understanding is that the statute was enacted to prevent over zealous prosecutors from forcing a shooter to prove that they held a reasonable fear of death or great bodily injury. To place the burden on the accused arguably flew in the face of system where one is presumed innocent until proven guilty. I tend to agree with that train of thought and believe that a shooter should be presumed to have feared imminent peril, as long as the presumption is rebuttable.
Were it rebuttable, then once any evidence is offered tending to prove that a fear of imminent death or injury was lacking, no presumption exists.
As for the stand your ground part of the statute, it really has nothing to do with the existence or extent of any presumption. If force is used in any other place than a dwelling, residence, or vehicle, it seems abundantly clear that the accused may not rely on the presumption that he/she held the reasonable belief. Once they are shown to or admit to doing the shooting, they have the burden of establishing justification.
Just my 2 cents.
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DesertFox5768
New member
Just an aside, but I'm really impressed at the discussion of this issue I have seen at various gun forums. Always mature, reasoned, empathetic discussion. A few of the right-leaning or libertarian sites I have visited feature a disturbing number of commentators that celebrate the incident, as if a shooting that resulted in the death of a teenager (and from the looks of it not a gang member or criminal) were a cause for celebration. Kudos to the gun crowd.
Frank Ettin
Administrator
[1] Just to be clear, the Florida law does not create a presumption that use of lethal force was justified merely because of unlawful entry.TheKlawMan said:
The Florida statute is quoted and linked to in posts 14 and 16. The presumption is that the defender had a reasonable fear of "imminent peril of death or great bodily harm." That is necessary, but not necessarily sufficient, for a use of force to be determined to be justified. For example, if the defender instigated or provoked the act, he would lose claim to justification.
In addition, the Florida statute sets out a number of circumstances under which the presumption would specifically not arise.
[2] You might be interested to know that California law, Penal Code 198.5, includes a similar presumption:
No reason it should. The general rule today is that a presumption is rebuttable. For a presumption to be conclusive, a statute or court decision would need to specifically and explicitly so provide.TheKlawMan said:
TheKlawMan
Moderator
Thank you for the lesson on California law. I have barely cracked a Crim book since school days, but this so happened to be one with which I had some small familiarity. Not much since the issue at bar is Florida law and when the state in question is clear on the law I find it best to argue governing law.
Turning to Florida law, I see that FS Section 90.301(2) provides that a presumption is rebuttable untless the law from which it arises expressly provides that it is conclusive.
Obvioulsly you have a good deal of trial experience and are well aware of how easy it is to refute the presumption beyond a reasonable doubt that the accused did not reasonably hold a fear of imminent death or harm . . . . In the hypo of the drunk passed out on the couch the prosecution may win, but it can be rather difficult from what I hear.
Turning to Florida law, I see that FS Section 90.301(2) provides that a presumption is rebuttable untless the law from which it arises expressly provides that it is conclusive.
Obvioulsly you have a good deal of trial experience and are well aware of how easy it is to refute the presumption beyond a reasonable doubt that the accused did not reasonably hold a fear of imminent death or harm . . . . In the hypo of the drunk passed out on the couch the prosecution may win, but it can be rather difficult from what I hear.
Frank Ettin
Administrator
The point is not California law or Florida law. The point is that this presumption, which seems to trouble you so much, is not unusual. It is a standard feature of Castle Doctrine and similar statutes.TheKlawMan said:
Nor is such a presumption an especially new feature in "use of force" law. The California statute goes back to 1984.
Well, I don't have trial experience. But, your sarcasm aside, I still seem to understand presumptions better than you. Until I pointed it out, you apparently weren't aware that presumptions were in fact generally rebuttable. And of course, how easy a presumption is to rebut in a particular case will depend on the exact circumstances and evidence available.TheKlawMan said:
Indeed it's probably not unreasonable to conclude that, absent a clear and excruciatingly obvious indication to the contrary, someone who has unlawfully and forceably broken into your home intends you no good.
And you seemed perfectly happy with the presumption if it were rebuttable (post 30):
TheKlawMan said:
TheKlawMan
Moderator
Why am I not surpised that you have no trial experience. As for your knowledge of presumptions, they are something that I rarely dealt with and of which I admit to knowing little. I believe it has been nearly fifteen years since I had a serious presumption issue arise. I don't even remember exactly what the issue was or if I ever understood it, but I do remember winning the case. I do know it had nothing to with criminal law. Am I happy with the presumption in the Florida statute? The more I think of it, I just don't lilke it although I can't quite put together what bothers me so much about it.
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Frank Ettin
Administrator
I guess it doesn't take a trial lawyer to have a general knowledge of the subject. In any case, as I've posted before, I practiced law for over 30 years before retiring at the age of 59. For almost 15 years leading up to my retirement, I was a senior lawyer and vice president of a Fortune 200 company. During my varied career by responsibilities included managing and controlling complex litigation and making tactical decisions with trial counsel.TheKlawMan said:
So I guess you don't like Castle Doctrines as have been adopted in quite a few States now.TheKlawMan said:
As I was glancing through the thread, I kept looking for mention of the "initial aggressor" limitation to the right of self-defense and its interplay with the "no duty to retreat" doctrine. I didn't see any in my scan through. I know it is a limitation in my state and in Florida (see below). I suspect it is in many states' penal codes because our penal code was based on the Model Penal Code.
The initial aggressor limitation essentially takes away the right to use self-defense and make the no duty to retreat doctrine moot if the suspect/defendant is the initial aggressor. It does take into consideration whether the initial aggressor backs off. There's an article about this on the Volokh Conspiracy. http://volokh.com/2012/03/24/lethal...-duty-to-retreat-and-the-aggressor-exception/
The initial aggressor limitation essentially takes away the right to use self-defense and make the no duty to retreat doctrine moot if the suspect/defendant is the initial aggressor. It does take into consideration whether the initial aggressor backs off. There's an article about this on the Volokh Conspiracy. http://volokh.com/2012/03/24/lethal...-duty-to-retreat-and-the-aggressor-exception/
Frank Ettin
Administrator
TheKlawMan
Moderator
How would you feel about Florida's Castle/Stand Your Ground Law if the presumption was conclusive, Frank Ettin?
I wonder if this post is going to disappear into cyber space like the one I thought I earlier posted. Basically, I merely noted that you appear to have had a fine legal education and I assume that you were a fine attorney.
I wonder if this post is going to disappear into cyber space like the one I thought I earlier posted. Basically, I merely noted that you appear to have had a fine legal education and I assume that you were a fine attorney.
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